CHILDHOOD OBESITY, ADVERTISING AND THE FIRST AMENDMENT A WHITE PAPER Martin H. Redish Louis and Harriet Ancel Professor of Law and Public Policy Northwestern University School of Law

June 8, 2011

Childhood Obesity and the First Amendment INTRODUCTION1 Childhood obesity today represents an extremely serious and complex societal problem which requires a thorough and creative response by both the public and private sectors. In attacking this problem, however, it is vitally important not to settle for simplistic “quick fixes”—especially when they seriously threaten important constitutional rights. The so-called “voluntary” regulations prohibiting the advertising of certain foods (recently issued, with a request for comments, by the congressionally established and directed2 Interagency Working Group on Food Marketed to Children)3 will do nothing to remedy the problem of childhood obesity. Equally important, however, is the fact that those regulations unambiguously contravene the First Amendment’s protection of commercial speech as currently established by clear Supreme Court doctrine. Ineffective and unconstitutional remedies are hardly the appropriate responses to one of the most pressing public health concerns currently facing the nation. Commercial speech has received robust constitutional protection in recent decades, with the Supreme Court consistently recognizing the serious threat to important First Amendment values posed by the suppression of advertising for lawful products and services. Indeed, in the last fifteen years the Supreme Court has invalidated all governmental suppression of commercial advertising to have come before it, always on the grounds that those regulations violate the First Amendment right of free expression.4 As this white paper will demonstrate, the Interagency Working Group’s regulations of advertising on behalf of many of the most advertised foods in general, and ready-to-eat cereals and yogurt in particular, give rise to all of the constitutional pathologies sought to be prevented by the First Amendment’s protection of commercial speech. Those regulations seek to manipulate lawful consumer choices, not by means of free and open debate but rather through a process of selective suppression of protected expression. Moreover, they will fail materially to advance their purported goal of reducing childhood obesity. Finally, even were we to suspend disbelief and make the inaccurate assumption that the regulations would bring about a beneficial result, there is no doubt that they sweep much further than necessary or appropriate to achieve their goal. The regulations therefore unconstitutionally suppress commercial speech. We should heed the warning of the recently-issued Report to the President, prepared by the White House Task Force on Childhood Obesity, that “[any regulatory] efforts must carefully

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In December 2009, due to my well-known views regarding the Constitution’s robust First Amendment protection of commercial speech, I was invited by the Federal Trade Commission to participate in its public forum entitled Sizing Up Food Marketing and Childhood Obesity (Dec. 15, 2009). Following that forum, I was asked by General Mills, Inc. if I would be willing to further develop my thoughts on the particular advertising restrictions at issue here on a consulting basis. Given how strongly I feel about this issue [See, e.g., MARTIN H. REDISH, MONEY TALKS: SPEECH, ECONOMIC POWER AND THE VALUES OF DEMOCRACY 14-62 (2001)], I readily agreed. This white paper is the result of that work. 2 Omnibus Appropriations Act, H.R. 1105, 111th Cong. (2009). 3 The group is composed of the Federal Trade Commission, Center for Disease Control and the U.S. Department of Agriculture. See Michelle Rusk, Senior Attorney, Division of Advertising Practices, Federal Trade Commission, Remarks at Federal Trade Commission public forum: Sizing Up Food Marketing and Childhood Obesity (Dec. 15, 2009) at Tr. 212–13. 4 See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173 (1999); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

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Childhood Obesity and the First Amendment consider freedom of speech interests.”5 Instead of pursuing constitutionally unacceptable and socially futile remedies, governmental agencies should focus their attention and resources on finding non-speech alternatives by which to achieve their worthy goal of ameliorating the problem of childhood obesity. The first section of this white paper will describe the key elements of the recently issued regulations. The next section will explain why the mere fact that the regulations, at least in their initial stage, are to be termed “voluntary” in no way reduces the acute—and therefore justiciable—threat to First Amendment rights to which they give rise. The final section will explain why the regulations contravene the First Amendment’s protection of commercial speech, as current Supreme Court doctrine has fashioned that guarantee. I. THE WORKING GROUP’S REGULATIONS SUBSTANTIALLY RESTRICT FOOD MARKETERS’ ABILITY TO PROMOTE LAWFUL PRODUCTS IN A TRUTHFUL MANNER The Interagency Working Group’s stated purpose in fashioning the regulations was to “tap into the power of advertising and marketing” in order to develop “a set of principles to guide industry efforts to improve the nutritional profile of foods marketed directly to children ages 2-17….” 6 The goal of the recently issued regulations, then, is to modify the behavior of both food manufacturers and consumers, not through direct legislative or administrative alteration or restriction of that behavior, and not through governmental attempts to persuade by making contributions to free and open debate, but rather indirectly through the selective, content-based manipulation of truthful speech about completely lawful activity. The Working Group’s proposed restrictions of foods marketed to children include two different forms of limitation: requirements that those foods (1) contain ingredients that make a “meaningful contribution to a healthful diet,”7 and (2) “minimize the content of nutrients that could have a negative impact on health or weight.”8 Foods that fail to satisfy a combination of these two standards are not to be promoted in marketing targeted to children. It is worth noting that these standards are breathtakingly strict, barring the marketing of virtually all common foods, including many products that FDA defines as “healthy” (indeed, many products that bear FDA-authorized health claims would be barred from advertising) and foods that USDA promotes for child consumption under its Women, Infants, Children (WIC) food assistance program. Because the Working Group fashioned its regulations in order to restrict and reshape “marketing targeted to children and adolescents,”9 it is important to understand how the Group defines that phrase. Operative terms within the phrase include “targeted,” “marketing,” and “children and adolescents.” In defining “marketing,” the Working Group included “television, radio, and print advertising; companysponsored web sites, ads on third-party Internet sites, and other digital advertising, such as email and text messaging; packaging and point-of-purchase displays and other in-store marketing tools; advertising and 5

White House Task Force on Childhood Obesity Report to the President, Solving the Problem of Childhood Obesity Within a Generation, at 31 (May 2010) (hereafter White House Report). 6 Food for Thought: Interagency Working Group Proposal on Food Marketing to Children, at 1. 7 Interagency Working Group on Food Marketed to Children: Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts—Request for Comments, at 15 (hereinafter, Working Group Proposal). 8 Id. at 16. For more detailed description of the specific nutrients involved, see generally id. 9 Id. at 16.

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Childhood Obesity and the First Amendment product placement in movies, videos and video games; premium distribution, contests, and sweepstakes; cross promotions, including character licensing and toy co-branding; sponsorship of events, sports teams, and individual athletes; word-of mouth and viral marketing; celebrity endorsements; in-school marketing; philanthropic activity tied to branding opportunities, and a catch-all other category.” 10 In sum, according to the Working Group, “marketing activities are broadly defined to encompass virtually all kinds of promotional activities directed to youth.”11 “[T]argeted to children and adolescents” is defined in a variable and wide-ranging manner. 12 For “measured media,” including television, radio, print and some Internet advertising, the definitions refer primarily to audience share. For instance, in the case of television advertising, an advertisement is deemed to be targeted to children ages 2-11 if the advertising appears within a program, “programming block,” or “daypart” where children 2-11 account for 30% or more of the audience, and an audience share of 20% adolescents ages 12-17 for a program, programming block, or daypart means that all advertising appearing therein is targeted to adolescents.13 In the words of the Working Group, “these audience shares are likely to ensure capturing most programming or publications targeted to children or adolescents, while not also including substantial amounts of adult fare that happen to have some young people in the audience.”14 The Working Group makes this claim, even though in both instances the overwhelming portion of the audience is adult. And in fact, given the references to “programming blocks” and “dayparts,” an advertisement could run in a program that has a 100% adult audience, and still be deemed be targeted to kids if surrounding programming is child- or teen-oriented. Indeed, even on all-family programming where the child or teen audience shares may be substantially below the 30% or 20% levels, advertising is barred if the advertiser has the subjective intent to reach children or teens (along with adults).15 Thus, these restrictions are not just covering communications that are solely directed to, or received by, children and teens. They go far beyond this. Outside of “measured media,” the criteria for determining what constitutes “marketing to kids” become arguably even more questionable and overbroad. For example, under the proposed advertising 10

Id. at 18. Id. 12 The Working Group has proposed adoption of the FTC’s specific definitions of when a particular marketing technique is targeted to children and to adolescents as set out in the FTC’s 2008 report, “Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities, and Self-Regulation.” Working Group Proposal at 18. However, the Working Group’s citation to these definitions is presumably an error, as the FTC subsequently refined these definitions in its 2010 “Order to File Special Report” (the responses to which will serve as the basis for the FTC’s forthcoming updated report on marketing food to children and adolescents). See Order to File Special Report, FTC Matter No. P064504 (August 12, 2010). Accordingly, this white paper cites to the FTC’s refined definitions included in its “Order to File Special Report.” 13 Working Group Proposal at 18. These audience share figures were apparently arrived at by doubling the percentage of the population that consists of children 2-11 and adolescents 12-17 respectively. Id. Of course, by breaking children and adolescents into two groups like this, the restrictions are vastly stricter than they would be if the two age ranges were combined, and the standard were 50% ages 2-17. The intellectual basis for not combining the groups is not entirely clear, though the result is convenient if the goal is to restrict the maximum amount of commercial speech. In other contexts, such as online marketing, the audience share of children 2-11 that yields the automatic determination that one is “marketing to children” declines to a mere 20%. Order to File Special Report at B-3–5. The intellectual basis for this disparity is even less clear. 14 Working Group Proposal at 18. For a more detailed description of the Working Group’s breakdown of the word, “targeted,” see generally id. at 18-19. 15 Order to File Special Report at B-2. 11

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Childhood Obesity and the First Amendment ban, the presence of an animated character on product packaging is definitive proof that the product is being marketed to children or adolescents. 16 Therefore companies would be prohibited from featuring even their own logo characters on product packages (for products not meeting the nutrition standards) regardless of even when the product is intended to be marketed to adults. Companies would similarly be prohibited from using the words “child” or “adolescent” (or similar terms) on packaging or from featuring children or adolescents on packaging, even in communications directed to parents.17 Indeed, companies would be prohibited from making statements such as “your child would love this.” 18 For purposes of assessing the constitutionality of the regulations, it is important to take special note of several factors. Most important is what the regulations do not reference. For example, the regulations in no way demand or assume that the regulated advertising be false or misleading in any way. The Working Group is thus willing to proceed on the assumption that the advertising which it “urges” the manufacturers to suppress is completely truthful—indeed, perhaps even informative. Moreover, the Working Group quite clearly contemplates letting nothing at all turn on the legality of the activity being promoted. Instead, it seeks to manipulate lawful behavioral choices of its citizens solely through the selective suppression of truthful and lawful expression. For reasons that will soon be made clear, such an approach is wholly inconsistent with the foundations of the First Amendment guarantee of free expression in general and the constitutional protection of commercial speech in particular.19 Before reaching the heart of the constitutional defects in the proposed regulations, however, it is first necessary to explain why they will have an immediate and negative impact on the First Amendment rights of both commercial speakers and listeners. As a result, they will be subject to judicial review the moment they are finally promulgated, despite their superficially “voluntary” nature. II. THE SUPPOSED “VOLUNTARINESS” OF THE WORKING GROUP’S REGULATIONS DOES NOT PRECLUDE THEIR CREATION OF AN IMMINENT, JUSTICIABLE THREAT TO FIRST AMENDMENT RIGHTS By framing their promulgated regulations as merely “voluntary,” the Working Group effectively seeks to gain the benefit of its suppression of lawful expression while simultaneously insulating that suppression from judicial review. But government cannot be permitted to establish a regulatory framework, the sole intent and effect of which will be to suppress speech, while such framework remains immune from judicial review. To the contrary, these regulations will be ripe for judicial review as soon as they are finally promulgated. It is impossible to ignore the coercive effect imposed by these regulations, as well as their starkly restrictive impact on speech. The regulations will impose costly and impossible choices on those subject to the regulation. Food companies will be forced to choose between, on the one hand, abandoning 16

Id. at B-5. Id. at B-6. 18 In addition, other activities that are deemed to constitute marketing to children (such that food companies would be precluded in engaging in these activities, except with the rare product that meets the stringent standards) include: sponsorship of charities that benefit children (like Special Olympics, March of Dimes, Make-A-Wish, etc.); sponsorship of a public entertainment event (like a sporting event or state fair) that may involve kid-oriented activities; sponsorship of the U.S. Olympic Team (or any other team involving kids under 18); using an animated figure, like Santa Claus or the Easter Bunny, on a package of holiday-oriented food; employing a celebrity or famous athlete who is “highly popular” with kids. See, e.g., Order to File Special Report at B-5, 8, 12, 14, 16-17. 19 See Section III, infra. 17

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Childhood Obesity and the First Amendment marketing efforts central to the success of their businesses and, on the other hand, facing a parade of wholly untenable consequences, including: (i) risking even harsher regulation which will almost inevitably follow absent compliance with these regulations); (ii) risking enforcement actions; (iii); garnering the opprobrium of the agencies that have the greatest power over virtually every aspect of the food companies’ businesses; (iv) subjecting themselves to continued, and more intrusive, investigations relating to advertising practices; (v) opening themselves up to class action lawsuits (which, in the current environment, are essentially a certainty in the event of noncompliance); and (vi) causing disastrous reputational consequences for food companies who choose to continue to market products that the government has formally deemed to be unworthy for consumption. This sort of “choice” is inherently coercive and thus not really a choice at all. Moreover, even in the event that manufacturers choose to ignore the government’s directive, if media outlets, retailers, and others refuse to run the advertising materials that the government seeks to restrict, as they are similarly being coerced to do, food companies will be left without even a semblance of a choice to reject the Working Group’s standards. For a number of constitutionally dictated reasons, each of these factors renders the regulations ripe for judicial review. First of all, governmental regulations that seek only “voluntary” compliance will nonetheless give rise to a ripe lawsuit where those who have been subjected to the supposedly voluntary regulation have been made aware that their failure to comply will likely lead to imposition of mandatory regulation.20 Here, explicit threats of coercive action in the event of the industry’s failure to comply have already been made.21 The White House Report expressly recommended that “[i]f voluntary efforts to limit the marketing of less healthy foods and beverages to children do not yield substantial results, the FCC could consider revisiting and modernizing rules on commercial time during children’s programming.” 22 Indeed, simply as a matter of common sense, it is all but inconceivable that the federal government would incur the burdens and expense involved in establishing the Interagency Working Group and preparing the advertising regulations, only to have the food industry summarily ignore them. The voluntary nature of 20

C.f., Arent v. Shalala, 866 F. Supp. 6, 11 (D.D.C. 1994), aff’d in part and rev’d in part on other grounds, 70 F.3d 610 (D.C. Cir. 1995); Washington Legal Found. v. Friedman, 13 F. Supp. 2d 51 (D.D.C. 1998), rev’d on other grounds sub nom. Washington Legal Found. v. Henney, 202 F.3d 331 (D.C. Cir. 2000). Where imposition of mandatory regulation stands as a reasonable threat in the face of failure to comply with voluntary regulations, the situation is analogous to cases in which criminal prosecution has been threatened if individuals were to take specified actions. In such situations, the threatened individual has routinely been permitted to seek declaratory relief in federal court challenging the legality of the threatened prosecution, even though no actual prosecution has yet been filed. See, e.g., Steffel v. Thompson, 415 U.S. 452 (1974) (individual threatened with criminal prosecution if he continued to distribute anti-war literature was allowed to seek declaratory judgment in federal court finding future prosecution a violation of the First Amendment.). The exact same reasoning that justifies the allowance of such suits applies to the proposed “voluntary” regulations. 21 See, e.g., Sizing Up Food Marketing and Childhood Obesity, at 261, 263 (12/15/09) (Statement of David Vladeck, Director of Bureau of Consumer Protection of Federal Trade Commission, commenting that: “We would not be talking about government regulation if industry self-regulation had made greater strides,” and then further noting that if industry does not “make great strides in limiting children-directed marketing” in compliance with these regulations, Congress is likely to “decide for all of us what additional steps are required.”) Director Vladeck also noted at the more recent IOM Workshop on Legal Strategies For Childhood Obesity Prevention, that the FTC could, if it so chose, pursue non-complying food companies under the unfair or deceptive advertising provisions of the FTC Act (10/21/2010). See also White House Report, supra note 5, at 31-32 (“[t]he prospect of regulation or legislation has often served as a catalyst for driving meaningful reform in other industries and may do so in the context of food advertising” and then noting that, in this context, government can “promulgat[e] laws and regulations when other methods prove insufficient.”). 22 White House Report, supra note 5, Recommendation 2.9, at 32.

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Childhood Obesity and the First Amendment the regulations is therefore appropriately deemed to be nothing more than a precursor to coercive enforcement in the event that the industry fails to comply. In addition, though such enforcement may well come in the form of the subsequent issuance of mandatory regulations or direct enforcement actions by the government, the coercion does not end with the danger of either of these consequences. It must be recalled that the agencies involved in the Interagency Working Group include those agencies that wield the most significant regulatory authority over most other aspects of food companies’ businesses, and that have the demonstrated power to conduct intrusive and burdensome investigations of industry practices, including inquiries into marketing activities aimed at children.23 Moreover, when the government inquires or opines about nearly anything in today’s environment, costly class action lawsuits quickly follow.24 Thus, the mere existence of the regulations, and certainly any failure to comply with them, will result in harsh consequences for food companies – not only from the government itself, but from private parties as well. And in some cases, the government is explicitly urging key business partners of food companies to mete out such harsh consequences. Indeed, the government has asked that media companies refuse to run advertising that fails to comply with the regulations.25 This would clearly amount to the imposition of a governmental penalty on non-complying companies. The fact that it is indirect makes it no less real. These threats would render the regulations sufficiently non-voluntary and ripe for judicial review even if the First Amendment were not implicated, but ripeness is even more clear in this instance because of the regulations’ obvious impact on free expression. It is well established that regulatory threats to freedom of expression justify facial challenges due to the chilling effect on speech created by the specter of government sanction.26 Judicial fears of self-censorship have led to recognition of a far more lenient approach to ripeness requirements when First Amendment rights are implicated.27 The Supreme Court has long recognized the common sense reality that government pronouncements about the legitimacy of speech inevitably have a coercive effect. For example, in Bantam Books v. Sullivan, the Supreme Court invalidated the government’s practice of notifying publishers that certain books met the definition of obscenity.28 That decision squarely rejected the government’s argument that mere agency exhortations, unaccompanied by “formal legal sanctions,” did not violate the First Amendment where the targets of the governmental statements inevitably felt compelled to alter their speech activities.29 Bantam Books is consistent with a long line of cases holding that the government cannot use its regulatory authority and 23

For instance, the FTC has, in 2007 and again in 2010, ordered over 40 food companies to produce exhaustive records and information relating to products directly or indirectly marketed to kids. See, e.g., United States Federal Trade Commission, Order to File Special Report dated August 12, 2010. 24 For example, a May 5, 2009 letter from the FDA’s Minneapolis regional office to General Mills regarding Cheerios labeling practices resulted in the filing of six purported class actions against General Mills (parroting the FDA letter) within a matter of a few weeks. 25 See, e.g., White House Report, supra note 5, at 32 (Recommendations 2.6-2.9). 26 See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 278–79 (1964) (expressing concerns about speech regulations that lead to “self-censorship”); Wolfson v. Brammer, 616 F.3d 1045, 1058 -1059 (9th Cir. 2010) (reviewing numerous cases holding that “one need not await ‘consummation of threatened injury’ before challenging a statute restricting speech, to guard against the risk that protected conduct will be deterred). 27 Martin H. Redish, 15 Moore’s Federal Practice ¶. 101.61[5][b] (3d ed.; rev’d 2010). 28 Bantam Books v. Sullivan, 372 U.S. 58, 66-67 (1963). 29 See also Entertainment Software Ass’n v. Blagojevich, 469 F.3d 641, 651-52 (7th Cir. 2006) (invalidating labeling requirements for “violent” video games because government was attempting to suppress speech by imposing the government’s opinion).

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Childhood Obesity and the First Amendment police power as a veiled threat to discourage speech.30 There can be no doubt that the regulations here will suppress speech in the same manner—indeed, that is their entire point. Moreover, preventing companies which have been subjected to supposedly voluntary regulations from bringing a constitutional challenge until explicitly mandatory regulations have actually been promulgated would cause substantial hardship to those companies. Once mandatory regulations have been promulgated, the affected companies would be placed in the precarious position of choosing between declining to exercise their First Amendment rights until they are able to obtain legal relief on the one hand, and risking incurring penalties for failure to comply with those mandatory regulations, on the other hand. The existence of such potential hardship from delayed adjudication has long been recognized as an appropriate ground on which to find a suit ripe for adjudication.31 The threat to free speech rights caused by promulgation of the voluntary regulations therefore constitutes an imminent and cognizable violation of the advertiser’s First Amendment rights. The Supreme Court recognized in Bantam Books that “[i]t is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments.”32 Government cannot be permitted to establish a regulatory framework in which the constitutional rights of the subjects of its regulation are infringed as a practical matter, while that framework remains immune from judicial review. The inherently coercive nature of the regulatory process is in no way diluted by labeling the regulations “voluntary.” Under established precedents, the nominally voluntary nature of the regulations will not prevent immediate judicial review of their constitutionality. III. THE PROPOSED REGULATIONS VIOLATE THE FIRST AMENDMENT’S PROTECTION OF COMMERCIAL SPEECH A. The First Amendment Prohibits Government from Suppressing Truthful Advertising for Lawful Products in an Effort to Keep Consumers Ignorant about Their Economic Choices. The First Amendment’s protection of commercial speech, no less than its protection of other categories of expression, is designed to prevent government from manipulating citizen behavior through the selective suppression of speech advocating lawful action. Such indirect manipulation of private choices is inherently inconsistent with the essential premises of the social contract between government and citizen necessarily implicit in any liberal democratic society. When government acts in such a manner, it undermines the ability of citizens to make lawful choices, not by imposition of legislatively authorized restrictions on conduct or through processes of free and open debate, but rather indirectly by the manipulative and selective suppression of truthful expression. In the words of constitutional scholar 30

See, e.g., Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (finding triable issues as to whether a local official’s disapproval of advertisement constituted an “intimat[ion] that some form of punishment or adverse regulatory action would follow” absent compliance); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (holding that informal government actions violate the First Amendment when likely to chill free speech and enjoining a government investigation); Rossignol v. Voorhaar, 316 F.3d 516, 526 (4th Cir. 2003) (finding that the need for business owners to maintain good relations with local police resulted in intimidation from police presence designed to suppress speech); Playboy Enters., Inc. v. Meese, 639 F. Supp. 581 (D.D.C. 1986) (enjoining Attorney General from publicly disseminating a list of publications that purportedly constituted pornography). 31 Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967) (hardship held to be important consideration in deciding ripeness question.). See also Martin H. Redish, 15 Moore’s Federal Practice ¶101.76. 32 372 U.S. at 66.

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Childhood Obesity and the First Amendment Burt Neuborne in his discussion of commercial speech protection, “government has no legitimate interest in manipulating ostensibly free choice by cutting off the flow of information…. When society provides its members with lawful choices, respect for individual dignity compels that the choices be the autonomous expression of individual preference. It is impossible to respect individual autonomy with the left hand while selectively controlling the information available to the individual with the right hand. A purportedly free individual choice premised on a government controlled information flow is a basic affront to human dignity.”33 In its decision in Edenfield v. Fane, the Supreme Court recognized the relevance of this foundational precept of liberal democratic theory to the protection of commercial speech: The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented.34 In his opinion for the plurality in 44 Liquormart v. Rhode Island, Justice Stevens wrote that bans of truthful advertising of lawful products designed to protect consumers from commercial harms “rarely protect consumers from such harms. Instead, such bans often serve only to obscure an ‘underlying governmental policy’ that could be implemented without regulating speech.”35 Justice Stevens added that “[i]n this way, these commercial speech bans not only hinder consumer choice, but also impede debate over central issues of public policy.”36 Justice Stevens found such regulations unconstitutional because they usually rest on the offensive assumption that the public will respond ‘irrationally’ to the truth. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. That teaching applies equally to state attempts to deprive consumers of accurate information about their chosen products.37 As early as in its first decision extending substantial First Amendment protection to commercial speech, Virginia State Board of Pharmacy v. Virginia Citzens Consumer Council, the Court reminded us that “[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it if freely available, that the First Amendment makes for us.”38

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Burt Neuborne, The First Amendment and Government Regulation of Capital Markets, 55 Brook. L. Rev. 5, 37 (1989). 34 507 U.S. 761, 767 (1993). 35 517 U.S. 484, 502–03 (1996) (citation omitted). 36 Id. at 503. 37 Id. (internal citation omitted). See also Thompson v. Western States Medical Center, 535 U.S. 357, 374 (2002) (“We have… rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.”). 38 425 U.S. 748, 770 (1976). See also Central Hudson Gas & Electric Corp. v. Public Servic Commission, 447 U.S. 55, 566 n. 9 (1980)(“We review with special care regulations that entirely suppress commercial speech in order to pursue a non-speech related policy.”).

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Childhood Obesity and the First Amendment It is true that advertisements, much like the speech of political candidates or many other examples of fully protected non-commercial communication, are a form of advocacy. As such, they usually will present only one side of an argument. That fact standing alone, however, does not categorically characterize them as “inherently misleading.” Indeed, if advertising’s strategic selectivity were to render it inherently misleading, the whole concept of commercial speech protection would have to be rejected. Given the Supreme Court’s vigorous protection of commercial speech in recent years, it is clear that the Court has rejected such a view. In those relatively few instances in which government validly concludes that, absent the provision of additional information, the consumer is likely to be given a misimpression by commercial advertising, it may require that the advertiser communicate such additional information.39 Moreover, unambiguously false claims may be regulated. But the strategically selective nature of the arguments inherent in advertising (or in any form of advocacy, for that matter), standing alone, does not provide a sufficient basis on which to justify the direct suppression of commercial communication. The regulations of advertising and promotion proposed by the Interagency Working Group sweep far and wide to disrupt significantly consumers’ ability to learn about lawful economic choices. Their restrictions reach advertising aimed at minors who are fully capable of rationally making their own lawful purchasing choices, as well as advertising seen primarily by adults.40 Moreover, there is no requirement that the advertisements in question first be found false or misleading for the ban to be triggered. The regulations thus directly contravene the core premises of commercial speech protection recognized by both the Court itself and its individual members over the years in a series of decisions beginning in 1976. They are therefore unambiguously inconsistent with the First Amendment’s protection of commercial speech. B. The Fact that the Proposed Regulations Purport to Suppress Only Advertising Aimed at Children Does Not Reduce the First Amendment Problems to Which They Give Rise. Supporters of the regulations would no doubt argue that the precepts of liberal democratic theory on which the First Amendment in general and its protection of commercial speech in particular are based have no relevance in the present situation. The regulations, the argument proceeds, suppress only advertising aimed at children, who are incapable of rational thought at a level sufficient to enable them to make free commercial choices in the same way in which adults are capable of making them. However, this argument fails for several reasons. Initially, it is inaccurate, as a matter of both First Amendment theory and doctrine, to assume that children—as either speakers or listeners—are categorically excluded from the scope of that constitutional protection. The Supreme Court has consistently recognized that children possess First Amendment rights,41 and that “[i]n most circumstances, the values protected by the First Amendment are no less 39

See, e.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). See, e.g., Order to File Special Report at B-2-B-10 (requesting advertiser’s information concerning marketing to children 2-11 via television, Internet, packaging, videogames, movies, public events, sponsorship of individual athletes, and numerous other activities); id. at C-1-C-15 (same as to minors 12-17). 41 See, e.g., Tinker v. Des Moines Indep. Community School District, 393 U.S. 503, 506 (1969) (invalidating prohibition on student expression and declaring that children do not “shed their constitutional rights . . . at the schoolhouse gate.”); id. at 511 (children are “‘persons’ under our Constitution . . . . possessed of fundamental rights which the State must respect.”); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (upholding First Amendment right of grade school student not to say the Pledge of Allegiance). 40

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Childhood Obesity and the First Amendment applicable when government seeks to control the flow of information to minors.”42 As Judge Richard Posner succinctly put it on behalf of the United States Court of Appeals for the Seventh Circuit, “[c]hildren have First Amendment rights.”43 Judge Posner also explained the rationale for such protection. “It is obvious,” he noted, that minors “must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise.”44 He persuasively argued further that “[p]eople are unlikely to become wellfunctioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.”45 Because adults have been afforded the constitutional right to receive commercial advertising as well as political communication, it logically follows that children should be recognized to possess similar rights. It is true, of course, that the Supreme Court has recognized certain exceptions to the general proposition that children possess full First Amendment rights. For example, the Supreme Court has on occasion recognized that minors’ constitutional right to view sexually indecent material is not the equivalent of an adult’s right to do so.46 But courts have generally confined this exception to the narrow context of sexually indecent speech.47 It is also arguable that minors may, under limited circumstances, be protected from speech advocating commercial activity when that activity would be illegal when engaged in by minors.48 However, it should be obvious that neither exception is applicable here. The speech at issue here has nothing to do with sexually indecent (or other psychologically harmful) speech. Rather, it relates to advertising of food – something that is not only legally permissible for children to consume, but that is required for survival. It has been argued that minors under the ages of 7 or 8 possess an inability to distinguish television advertisements from actual programming, and they are therefore unable to understand advertising’s inherently biased nature. Advertisements seen by these children, the argument proceeds, are thus rendered inherently misleading.49 Even if the assertion concerning the abilities of children under the ages of 7-8 were assumed to be accurate (which it is not), it surely would fail to justify the severe restriction of food advertising aimed at all children between the ages of 2 and 17, as the proposed regulations seek to impose.50 The regulations thus would employ a hatchet when at most a scalpel would be needed— something the First Amendment does not permit when speech advocating lawful purchase is the subject of the regulation. In any event, there is serious question concerning the scientific accuracy of the 42

See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 214 (1975). Am. Amusement Machine Ass’n v. Kendrick, 244 F.3d 572, 576 (7th Cir. 2001) (Posner, J.). 44 Id. at 577 (emphasis in original). 45 Id. See also MARJORIE HEINS, NOT IN FRONT OF THE CHILDREN 258 (2001) (“Youngsters need access to information and ideas, not indoctrination and ignorance … precisely because they are in the process of identity formation…. They are also in the process of becoming functioning adults in a democratic society….”). 46 See Ginsberg v. New York, 390 U.S. 629 (1968). 47 See, e.g., Am. Amusement Machine Ass’n, 244 F.3d at 574. 48 Not even this exception to First Amendment protection has been recognized in all contexts. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (holding unconstitutional state’s restriction of tobacco advertising viewed by minors because it unduly invaded ability of adults to view the advertisements). 49 See, e.g., Jennifer L. Pomeranz, Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate, 38 J. L. MED. & ETHICS 98, 99 (2010). 50 While it is true that the current proposal seeks public comment on whether the regulations should draw some distinctions between children under the age of 12 and older adolescents, it is still constitutionally unacceptable to treat an 11 year old in the same manner in which a 2 year old is treated. 43

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Childhood Obesity and the First Amendment accepted wisdom that children’s ability to distinguish advertisements from programming actually ends as late as the age of 7 or 8. Substantial scientific research supports the view that the age at which children recognize the difference between advertising and programming is actually as young as 3 or 4.51 Moreover, it is important to keep in mind that any child too young to grasp the difference between a television advertisement and a program52 is also too young to make unsupervised purchases. Thus, there will always be a filtering mechanism by which unwise choices can be prevented—namely, the parent or guardian who must make the actual purchase.53 Therefore the normal concerns that arguably justify categorical excisions of speech aimed at minors from the scope of the First Amendment—for example, fear of direct psychological harm or participation in activities illegal for or uniquely harmful to minors— cannot justify the proposed regulations. To the contrary, these regulations sweep within their reach countless minors who are wholly undeserving of the government’s paternalistic concerns. These are minors who, both doctrinally and normatively, deserve the intellectual respect that the First Amendment commands that they, as well as adults, receive. Finally, even if one were to concede even the most dubious factual claims concerning children’s inability to understand advertising claims which have been relied upon to support the broad sweep of the proposed regulations’ restrictions, the regulations would nevertheless violate the First Amendment because of their extensive restriction on the ability of adults to view the advertisements. It should be recalled that in their current form, the Working Group’s proposed regulations restrict advertising when the percentage of children in the audience is estimated at no more than 20 or 30%.54 That means that manufacturers would be prevented from communicating truthful information concerning lawful products to audiences that are made up of 70 or 80% adults. Moreover, as described earlier, the proposed regulations would prohibit numerous communications even when they are seen exclusively by adults.55 The Supreme Court has never allowed such a practice in the regulation of either commercial or noncommercial speech. Indeed, even in a case where the activity promoted by advertising was illegal for 51

John C. Luik, Ideology Masked as Scientific Truth: The Debate About Advertising and Children 16 (Washington Legal Foundation 2006) (“[T]he research record is much more mixed than the APA Report allows, such that it is simply not true to claim that the ‘evidence as a whole indicates that most children younger than about age 7-8 years do not typically recognize that the underlying goal of a commercial is to persuade the viewer.’”). Luik quotes Melissa Ditman in the American Psychological Association’s Monitor on Psychology in November 2002 as noting that “‘by age three or four, most children are able to differentiate an ad from a program.’” Id. at 11. See also DAVID COHEN, HOW THE CHILD’S MIND DEVELOPS 71 (2002) (questioning whether early studies of children’s understanding “are still wholly valid today given the many social and cultural changes that affect children.”); id. at 105 (citing studies demonstrating that “there is a major qualitative shift in thinking between the ages of 5 and 7 . . . as the child masters more complex relational structures.”). 52 It should be emphasized that in any event it is questionable whether anything should turn on a child’s inability to distinguish advertisements from programming. Assuming there is nothing false or misleading in the substance of the advertisement, it is by no means clear that a child’s inability to distinguish advertisements from programs in any way misleads the child in his or her understanding of the advertisement. 53 It might be suggested that, despite the existence of an adult filtering mechanism prior to purchase, exposing young children to the advertisements in question will nevertheless give rise to a “pestering” phenomenon where the parents feel they must give in to the child’s strongly held desires, regardless of the wisdom of such choices. But if accepted, such an argument would prove far too much. If the goal is avoiding parental pestering, logically all advertisements for toys should be prohibited as well. It is not unreasonable to assume that at various points in a child’s growth a parent will have to resist the child’s expressed desires because of the parent’s conclusion that such a choice would be unwise. 54 See Section I, supra. 55 See discussion, supra, notes 16-19 (and accompanying text).

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Childhood Obesity and the First Amendment minors (tobacco use), the Supreme Court struck down a state’s sweeping effort to restrict advertising seen by minors because the Court recognized “that the sale and use of tobacco products by adults is a legal activity” and “that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products.”56 In other instances, the Court has struck down regulations of commercial or indecent expression when “[t]he incidence of [the] enactment is to reduce the adult population…to reading only what is fit for children.”57 Because, in their effort to insulate children, the proposed regulations would, as detailed below, necessarily disrupt the ability of sellers to communicate with adult consumers, they would contravene the constitutionally grounded directive that government not restrict truthful advertising for lawful products.58 C. The Proposed Regulations Fail to Satisfy the Supreme Court’s Central Hudson Test for the Protection of Commercial Speech. 1. The proposed regulations fail the Central Hudson test. In recent years, several members of the Supreme Court have adopted the position that governmental suppression of truthful advertising for a lawful product or service in an effort to keep consumers uninformed categorically violates the First Amendment. Though not all members of the Court have expressly gone that far,59 it is important to note that at no time in recent years has a majority of the Court ever upheld suppression that fits this description. Where it has failed to invoke the categorical prohibition on the suppression of truthful advertising for lawful products, the Court has instead grounded its finding of unconstitutionality in the four-prong test for the protection of commercial speech established in Central Hudson Gas & Elec. Corp. v. Public Service Commission.60 In the case of the Working Group’s proposed regulations, even if the Court were to rely on the Central Hudson test in lieu of finding the regulations categorically invalid, there is little doubt that the proposed regulations would be found unconstitutional. The Court in Central Hudson established a four-step process by which to determine whether commercial speech could constitutionally be regulated or suppressed. First, where the speech promotes sale of an unlawful product or service or is found to be false or misleading, the regulation of commercial speech is to be automatically upheld. Assuming the speech in question has passed this first hurdle, the next three questions scrutinize the nature of the regulation of that speech. For the regulation of 56

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 564 (2001). Butler v. Michigan, 352 U.S. 380, 383 (1957). In the specific context of commercial speech regulation, see Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.”). As to indecent speech, see also Reno v. ACLU, 521 U.S. 844, 875 (1997) (holding that “the governmental interest in protecting children from harmful materials [on the Internet] . . . . does not justify an unnecessarily broad suppression of speech addressed to adults.”); Sable Communc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989) (holding unconstitutional ban on “dial-a-porn” because in its efforts to protect children the ban unduly interfered with First Amendment rights of adults). 58 See also the discussion in Section II(C)(3)(b), infra. 59 It should be noted, however, that even when applying a narrower test, the Court has expressly adopted this view. See Thompson v. Western States Medical Center, 535 U.S. 357, 374 (2002). 60 447 U.S. 557 (1980). Decisions invalidating regulations under Central Hudson, rather than categorically rejecting all paternalistically motivated suppression, include Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173 (1999) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 57

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Childhood Obesity and the First Amendment commercial expression to be upheld, it must pass all three of the remaining prongs; failure to satisfy any one of these requirements results in a finding of unconstitutionality. Under the second prong of the test, government must establish that its regulation of commercial speech serves a “substantial” governmental interest.61 Once that test has been satisfied, the court must determine “whether the regulation directly advances the governmental interest asserted….”62 The regulation will be invalidated if the regulations “only indirectly advance the state interest involved.”63 Moreover, the regulation must materially advance the interest. Government has the burden of establishing, beyond mere speculation, that its regulation does so.64 Even if the first three requirements have been satisfied, the regulation must still be found to be “[no] more extensive than is necessary to serve [the substantial governmental] interest.” Although in the early years of the test’s use one might have been able to accurately characterize the Court’s protection of commercial speech as somewhat inconsistent, there is no doubt that over at least the last 15-20 years the Court has enforced the test vigorously, consistently invalidating regulations of commercial speech for their failure to satisfy the third prong, the fourth prong, or a combination of the two. The proposed regulations of advertising for supposedly low nutrition foods—especially when applied to nutrient-dense foods like ready-to-eat breakfast cereals and yogurts—clearly fail both the third and fourth prongs of the Central Hudson test, and are therefore unconstitutional. This is so, even in the event the Court were ultimately to eschew reliance on a categorical invalidation of paternalistically motivated suppression of truthful commercial speech. 2. The proposed regulations fail materially to advance the government’s interest in reducing childhood obesity. The Court’s rationales for invalidating regulations of commercial speech under Central Hudson’s third prong generally fall into one of two categories: (1) the regulation leaves unregulated so large a portion of the problem sought to be remedied that it cannot be deemed to “materially” advance the government’s interest in preventing the asserted harm;65 or (2) the government is unable adequately to 61

447 U.S. at 566. Id. 63 Id. at 564. 64 Edenfield v. Fane, 507 U.S. 761, 770–71 (1993) (“This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”). 65 See, e.g., Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 190 (1999) (invalidating federal law prohibiting “some, but by no means all, broadcast advertising of lotteries and casino gambling” because “‘[t]he operation of [the challenged statute] and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.”); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 506 (1996) (emphasis in original) (invalidating prohibition of liquor price advertising as a means of promoting the government’s interest in temperance because “the State has presented no evidence to suggest that its speech prohibition will significantly reduce marketwide consumption.”); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (federal law prohibiting beer labels from displaying alcohol content held unconstitutional because under the law distilled spirits are permitted to display their alcohol content); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (invalidating ban on commercial news racks on city streets in the city by an attempt to improve esthetics, because the remaining non-commercial newspaper racks rendered “marginal indeed” the esthetic benefits gained from the regulation); Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 99–100 (2d Cir. 1998) (state’s prohibition of beer label with frog extending its middle finger could not be justified as an effort to protect children from obscenities, because of continuing wide-spread availability of obscenities in society). 62

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Childhood Obesity and the First Amendment support the proposition that the regulated speech gives rise to the problem sought to be remedied.66 Careful scrutiny of the proposed regulations at issue here demonstrates that while they are definitely designed to foster a “substantial” governmental interest (i.e., avoidance of childhood obesity), they cannot be deemed to “materially” advance that interest. For reasons to be discussed, this is particularly true when these regulations are applied to advertising for ready-to-eat breakfast cereals and other nutrientdense foods like yogurt, but ultimately the regulations will be found to violate the First Amendment in all of their potential applications. The simple fact is that, in the words of one group of commentators, “there has been little theoretical or empirical analysis of the central questions related to the ‘advertising causes obesity’ thesis.”67 Indeed, even the Federal Trade Commission itself has recently acknowledged that “[w]hile the urgency of the childhood obesity problem is obvious, the solution is less so.”68 Scholarly commentators have expressed views similar to the Commission’s assessment. In the words of one scholar, ‘[t]here is no compelling evidence that restricting the advertising of ‘junk food’ to children would advance the goal of protecting their health;”69 to the contrary, “the pervasiveness of the obesity problem in America suggests that more fundamental causes [than advertisements aimed at children] are at work.” 70 These more fundamental causes include broader societal conditions that have resulted in reduced physical activity and reduced access by those in certain geographic and economic segments to affordable, highquality food. The proposed regulations fail to satisfy the requirement of Central Hudson’s third prong for three reasons: (1) Strong evidence exists to support the proposition that reductions in exercise by children bears significant responsibility for the recent increase in childhood obesity; thus, even the total success of the proposed ban on advertising would leave substantial portions of the childhood obesity problem unaffected. (2) Whether or not reduced exercise is the primary cause, no persuasive evidentiary basis exists to support the view that advertising by the food industry aimed at children has contributed significantly to the increase in childhood obesity; thus, suppression of such expression would fail to materially advance the asserted governmental interest. (3) Ready-to-eat cereals represent the largest share of food advertised to children and therefore would be the category of products most affected by the regulations; yet the proposed regulatory restriction on the advertising of these cereals would fail miserably in advancing the interest in reducing childhood obesity, for the simple reason that cereals do 66

See, e.g., Edenfield v. Fane, 507 U.S. 761 (1993) (state ban on in-person solicitation by certified public accountants held unconstitutional because accountants “are not trained in the art of persuasion” there was no danger of overbearing or misleading in-person solicitation). See also Bad Frog Brewery, Inc., 134 F.3d at 100 (“The truth of these propositions [that the regulation of speech will advance the government’s substantial interest] is not so selfevident as to relieve the state of the burden of marshalling some empirical evidence to support its assumptions.”). 67 Todd J. Zywicki, Debra Holt & Maureen K. Ohlhausen, Obesity and Advertising Policy, 12 GEO. MASON L. REV. 979, 991–92 (2004). 68 Statement of the Federal Trade Commission Concerning the Interagency Working Group on Food Marketed to Children Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts, at 1. 69 J. Howard Beales, III, Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present, 12 GEO. MASON L. REV. 873, 890 (2004). 70 Id. at 891. It should be noted that while on occasion the Supreme Court has been willing to proceed on the assumption that advertising leads to increased sales of a product [see, e.g., Lorillard Tobacco Co. v. Reily, 533 U.S. 525, 557 (2001); Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 189 (1999)], that is a far different causation question from the one facing the government in the present situation. Here, the government’s substantial interest is not in reducing sales, but in reducing childhood obesity. Thus, in addition to establishing a connection between advertising and sales, the government is required to establish a connection between advertising and obesity. This the government is completely unable to do.

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Childhood Obesity and the First Amendment not contribute to the obesity problem. 71 Indeed, overwhelming evidence establishes that children who eat ready-to-eat cereals more often have far healthier body weights than those who eat cereal less often.72 Thus, far from materially advancing a government interest, banning the advertising of cereal would work directly against the governmental interest in reducing obesity. In and of itself, this fact sounds the death knell for the proposed regulations under Central Hudson’s third prong. a. There is substantial support for the proposition that reduced physical exercise is a significant cause of the recent increase in childhood obesity. Although no one disputes either the recent increase in childhood obesity or the serious resulting threat to public health and welfare, there remains considerable doubt as to the causes of that increase. One fact, however, appears clear: while the problem has intensified in recent years, there is a “lack of evidence of a general increase in energy intake” over the same period.73 If there has been no noticeable increase in intake of calories during the time period in which childhood obesity has increased, it is logical to look for other causes. The most likely candidate is reduced physical activity on the part of the nation’s youth. The recently issued White House Task Force Report on Childhood Obesity advises that “[u]nfortunately, our young people live in a social and physical environment that makes it easy to be sedentary and inconvenient to be active.”74 While the reasons for this dramatic reduction in physical activity—on the part of children as well as adults—are not entirely clear, it does appear that long-run technological changes have led to an increase in the relative cost of exercise.75 According to the recently issued White House Task Force Report, today “fewer than one in five high school students meet the current recommendations of 60 minutes of daily physical activity, and a recent study showed that adolescents now spend more than seven hours per day watching television, DVDs, movies or using a computer or mobile device like a cell phone or MP3 player.”76 Reduced physical activity is today a serious problem among the nation’s children. According to the United States Department of Health and Human Services, “[o]nly about one half of U.S. young people (ages 12-21 years) regularly engage in vigorous physical activity. Daily participation in high school 71

Similarly, yogurt is one of the products advertised relatively frequently to children, and nearly all such advertising would be banned by the proposed regulations. Yet there is no evidence whatsoever that yogurt contributes to obesity. To the contrary, yogurt is a nutrient dense food that provides important nutrients (protein, calcium, magnesium, vitamin A, and vitamin D) that children need for normal growth and development. Fewer than half of the children ages 2-12 get the calcium they need each day. However, kids who eat yogurt are twice as likely to meet the calcium intake recommendation as kids who do not eat yogurt. See National Center for Health Statistics (NCHS). National Health and Nutrition Examination Survey Data (“NHANES”) 1999-2002: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. 72 See discussion infra at notes 81-91 and accompanying text. 73 Luik, supra note 51, at 53 (quoting R. Troiano, Energy and Fat Intakes of Children and Adolescents in the United States: Data from the National Health and Nutrition, Examination Surveys, AM. J. CLINICAL NUTRITION 72: 1343S53 (2000)). See also Zywicki, et al., supra note 67, at 982 (“While it is clear that the rise of obesity is the result of ca change in net calorie balance, it is not clear to what extent increased consumption and decreased energy expenditure have respectively contributed to the change.”). 73 White House Report, supra note 5, at 66. 74 Id. at 66. 75 Tomas J. Philipson & Richard A. Posner, The Longer-Run Growth in Obesity as a Function of Technological Change 7-10 (Natl. Bureau of Econ. Research, Working Paper No. W7423; 1999); available at http://ssrn.com (abstract-227586). 76 White House Report, supra note 5, at 66 (footnote omitted).

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Childhood Obesity and the First Amendment physical education classes dropped from 42% in 1991 to 29 percent in 1999.”77 The problem of insufficient physical activity on the part of children would remain a serious cause of childhood obesity, even if the proposed regulations of television advertising were to have full effect. The problem would continue to exist despite the regulations’ promulgation. Where the problem sought to be remedied would continue to exist to a significant degree even following the regulation of commercial speech, both the Supreme Court and lower courts have regularly invalidated that regulation under Central Hudson’s third prong because of its failure to materially advance the substantial governmental interest.78 b. Food advertising aimed at children has decreased, while childhood obesity has increased. While there is good reason to believe that the increasingly sedentary lifestyle of American youth is a primary cause in the recent rise in obesity, there is no reason to believe that advertising plays any role in the matter. Indeed, the notion is belied by the fact that, at the same time that childhood obesity has been on the rise, exposure of children to television advertising for supposedly low nutrition foods has not risen and may well have been on the decline.79 The government cannot therefore meet its burden of demonstrating that prohibiting such advertising would materially advance its goal of reducing childhood obesity. c. Because ready-to-eat cereals do not contribute to the childhood obesity problem (and indeed help alleviate the problem), restricting their advertising would not materially advance the goal of reducing the problem. 80 When the proposed regulations are applied specifically to advertising for ready-to-eat cereals, their relevance to the problem of childhood obesity becomes even more remote. This is for the simple reason that according to indisputable supporting research, ready-to-eat cereals do not contribute to the childhood obesity problem. In fact, the exact opposite is true. Research has demonstrated that ready-to-eat cereals (including those that are presweetened) account for only 5 percent of children’s sugar intake (compared to 28 percent from beverages) and only 4 percent of total caloric intake.81 Indeed, cereal is lowest calorie option among common breakfast choices.82 And while providing only 4 percent of children’s caloric intake, cereal is extraordinarily dense in key nutrients, providing children with 17% to 34% of their intake of Vitamin A, Thiamin, Niacin, Vitamin

77

As quoted in Luik, supra note 51, at 64. See, e.g., sources cited supra note 65. 79 According to the Federal Trade Commission, in recent years “food ad exposure has not risen and is likely to have fallen modestly.” Federal Trade Commission, Bureau of Economics Staff Report, Children’s Exposure to TV Advertising in 1977 and 2004: Information for the Obesity Debate (June 1, 2007), at ES-5. See also id. at ES-7 (“[O]ur data do not support the view that children are seeing more advertising for low nutrition foods.”); Zywicki, et al., supra note 67, at 995 (“An analysis of Nielsen data fails to find any substantial increase in either expenditures on food advertisements or exposure to food advertising over the last ten years.”). 80 The discussion in this section relates to how the regulations, as applied to cereal, are clearly counterproductive and unconstitutional. The focus here on cereal is not intended to diminish the point that the regulations are similarly unconstitutional when applied to other products as well, but cereal presents an excellent example for purposes of discussion. 81 Cereal and Obesity, at 7, 11 (prepared by General Mills, June 9, 2010). 82 Id. at 11, citing U.S. Department of Agriculture, Agricultural Research Service. 2009. USDA National Nutrient Database for Standard Reference, Release 22. 78

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Childhood Obesity and the First Amendment B6, Folate, Iron, and Zinc.83 Researchers have found that “[c]hildren who consume cereal, relative to eating other breakfast foods, evidence lower body mass index,”84 and that “a pattern of regular cereal consumption through adolescence is associate with significantly lower percent body fat, lower total cholesterol, less television viewing, and higher rates of physical activity.”85 In addition, because cereal is nearly always consumed with milk, cereal is also responsible for 39% of the milk in children’s diets.86 It is therefore not surprising that researchers at the Children’s Nutrition Research Center, Department of Pediatrics at Baylor College of Medicine have concluded that “[n]utrition/health professionals should encourage the consumption of a healthy breakfast (e.g., one that includes a ready-to-eat cereal), especially among young adults.”87 It should be clear, then, that the notion that suppressing consumption of cereal through an advertising ban would somehow advance any legitimate public health interest is simply wrong. In fact, according to Dr. Ronald Kleinman, Chief of the Pediatric Gastroenterology and Nutrition Unit at Massachusetts General Hospital and Professor of Pediatrics at Harvard Medical School, “[r]esearch confirms an association between ready-to-eat cereal for breakfast and less overweight and obesity; also with better nutrient intake. This is true, whether or not the cereal is presweetened.”88 Indeed, studies have universally concluded that children who eat cereals (including pre-sweetened cereals) more frequently have lower body weights than those who do not – and by very wide margins.89 This result obtains for any age range. To pick one example, children age 7-9 who eat cereal 8 or more times per 14 days are over three times less likely to be overweight than those who eat cereal 0-3 times per 14 days. 90 A recent study looked solely at children eating sweetened cereal and found the same results.91 Despite these indisputable facts, children’s advertising for essentially all breakfast cereals would be prohibited by the proposed regulations. As applied to these cereals, then, the proposed regulations fail Central Hudson’s third prong even more strikingly than do the regulations as a whole.

83

Id. at 13, citing Centers for Disease Control and Prevention (CDC). National Center for Health Statistics (NCHS). National Health and Nutrition Examination Survey Data. Hyattsville, MD: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (“NHANES 2005-2006”). 84 Albertson, Thompson, Franko, Holschuh, Bauserman & Barton, Prospective Associations among Cereal Intake in Childhood and Adiposity, Lipid Levels, and Physical Activity during Late Adolescence, Journal of the American Dietetic Ass’n (2009), at 1775. 85 Id. at 1779. 86 Cereal and Obesity, at 14, citing NHANES 2005-2006. See also Albertson, Thompson, Franko, Kleinman, Barton & Crockett, Consumption of breakfast Cereal is Associated with positive health outcomes: evidence from the National Heart, Lung, and Blood Institute Growth and Health Study, 28 Nutrition Research 744 (2008) (same). 87 Deshmukh-Taskar, Radcliffe, Liu & Nicklas, Do Breakfast Skipping and Breakfast Type Affect Energy Intake, Nutrient Intake, Nutrient Adequacy, and Diet Quality in Young Adults? NHANES 1999-2002, 29 Journal of the American College of Nutrition 407, 416 (2010). 88 As quoted in Cereal and Obesity, supra note 81, at 9. 89 Albertson, et al., Ready-to-Eat Cereal Consumption: Its Relationship with BMI and Nutrient Intake of Children aged 4 to 12 years. J Am Diet Assoc 2003; 103:1613-1619. 90 Id. 91 Albertson, Thompson and Franko, The Relationship between Ready-to-Eat Cereal Consumption Categorized by Sugar Content and Body Measures in American Children: Results from NHANES 2001-06. Abstract #550.22. The FASEB Journal. 2009.

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Childhood Obesity and the First Amendment 3. Even assuming, solely for purposes of argument, that the proposed regulations materially advance the government’s substantial interest in reducing childhood obesity, they are far more extensive than necessary to serve that interest. Even if one were to suspend disbelief and somehow conclude that the proposed regulations of advertising actually would materially advance the governmental interest in reducing childhood obesity, it is nevertheless clear that they contravene Central Hudson’s fourth prong, which demands that the regulation of truthful commercial speech be no more extensive than necessary to serve that interest. On a number of occasions, the Supreme Court has invalidated commercial speech regulations either because alternative non-speech means of achieving the government’s goal were available or because the regulation swept too far, impinging upon protected speech that failed to give rise to the harm sought to be prevented.92 In the present instance the proposed regulations fail Central Hudson’s fourth prong on both grounds: first, means far less invasive of free expression exist to achieve the goal of reducing childhood obesity; second, the regulations sweep well beyond their limited goal of restricting advertising seen by children and adolescents, substantially disrupting the free speech rights of commercial advertisers to communicate with adults, and adults to receive those communications. a. Numerous less-invasive means of advancing the goal of reducing childhood obesity are available. In its recently issued report, the White House Task Force on Childhood Obesity described a wide variety of potential means to battle the problem of childhood obesity other than the restriction of advertising. These included (1) increased provision of health care services,93 (2) improvement in nutritional value of school meals,94 as well as of other foods offered in school and in afterschool programs,95 (3) improvement in the provision of access to quality foods or eradication of “food desserts,”96 (4) altering existing governmental food subsidy policies,97 and (5) increasing physical activity in schools while simultaneously encouraging a general increase in childhood physical activity. 98 In addition, as the Supreme Court has recognized in other contexts, 99 the availability of educational

92

See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996) (invalidating prohibition on price advertising of liquor because “[i]t is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State’s goal of promoting temperance….); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 565 (2001) (state’s restrictions of outdoor advertising of tobacco violate fourth prong of Central Hudson); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995) (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993)) (“[T]he existence of ‘numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.’”). 93 White House Report, supra note 5 at 33-34. 94 Id. at 37-46. 95 Id. at 46-48. 96 Id. at 49-50. 97 Id. at 58-59. 98 Id. at 65-73 (“Schools are a key setting to focus on, given the significant portion of time children spend there. Schools can undertake a combination of strategies and approaches to help children be more active….”). 99 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001); 44 Liquormart v. Rhode Island, 517 U.S. 484, 530 (1996).

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Childhood Obesity and the First Amendment campaigns to inform the public of the dangers of childhood obesity and the means to fight the problem renders the direct suppression of commercial speech unconstitutional.100 There has been absolutely no showing that the government has seriously attempted any, much less all, of these alternative measures prior to its effort to suppress television advertising. Although it is true that, in order to satisfy Central Hudson’s fourth prong, the regulation of speech need not be shown to be the absolute least restrictive alternative, it does require the government to first make meaningful attempts to deal with the problem using methods that do not threaten free expression. Yet to this point, the government has failed to demonstrate that it has made sufficient efforts to implement any of these recently recommended alternatives. Thus, a reviewing court would necessarily find the proposed regulations unconstitutional, in accord with the Supreme Court’s explicit holding that government may not suppress commercial expression when narrower restrictions “would serve its interest as well.”101 b. The proposed regulations unduly impact the First Amendment right of commercial advertisers to communicate with adults. Let us assume, solely for purposes of argument, that the government has satisfactorily established that (1) restricting advertising aimed at children would materially advance the government’s interest in reducing childhood obesity, and (2) the beneficial impact of these restrictions could not be achieved by alternative means less invasive of free speech rights.102 Even under these dubious assumptions, the constitutionally fatal flaw in the proposed regulations is that, in addition to affecting communication seen by young children, they intentionally sweep within their reach substantial amounts of commercial communication seen by adults or minors who are of sufficient age to make independent choices. On numerous occasions—involving both commercial speech and so-called “indecent” speech— the Supreme Court has unambiguously held that regulations of expression designed to protect children may not simultaneously disrupt communication between speakers and adult listeners or viewers.103 Yet the proposed regulations here suffer from the very same constitutional defect. While they purport to restrict only advertising aimed at children, they nevertheless extend their reach to advertising on shows where up to 80% or more of the audience is made up of adults, as described earlier.104 In addition, the proposed regulations restrict numerous forms of advertising and marketing in a variety of other contexts, 100

See also White House Report, supra note 5, at 68 (“Most physical activity for students can be provided through a comprehensive school-based physical activity program…. complemented by activities before, during, and after school, as well as in recess, other physical activity breaks, intramural and physical activity clubs, interscholastic sports, and walk and bike to school initiatives.”). 101 Central Hudson, 447 U.S. at 565. 102 As prior discussion has clearly demonstrated, however, these assumptions would be wholly inaccurate, both as to the regulations on their face and even more starkly when applied to ready-to-eat cereals. See discussion supra at Section III C (2) (c). 103 See, e.g. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 653–64 (2001) (state law designed to protect minors from tobacco advertising held unconstitutional because it interfered with communication between tobacco seller and adult purchasers); Reno v. ACLU, 521 U.S. 844, 875 (1997) (prohibition on indecent communications on the Internet held unconstitutional); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (prohibition of commercial mailings concerning use of prophylactics to prevent venereal disease held unconstitutional, despite possibility that minors might view the advertisements); Butler v. Michigan, 352 U.S. 380, 383 (1957) (government cannot constitutionally “reduce the adult population . . . to reading only what is fit for children.”); see generally Eugene Volokh, Freedom of Speech, Shielding Children, and Transcending Balancing, 1997 SUP. CT. REV. 141. 104 See text at nn. 15-16, supra.

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Childhood Obesity and the First Amendment negatively impacting adults’ access to the communication. For example, the definitions of the types of activities that supposedly constitute “marketing to children” (and that therefore would be constrained by the regulations) include the use of the word “child” on a food package to indicate that the product is “intended for children.”105 The fact that a product may be intended for children does not mean that it is being marketed to children. For example, many products are marketed to parents as products “your child will love.” But the proposed regulations would include within its prohibitions this sort of marketing to parents, even though the speech in this case is directed exclusively to adults. Clearly, the government may not bootstrap its assumed justification for restricting communication to children into a near-pervasive restriction on communication seen by substantial numbers of adults.106 Moreover, to the extent that the regulations are grounded in a concern that children who view the advertisements will lack sufficient cognitive development to comprehend the differences between an advertisements and normal programming,107 the fact that in many instances they prohibit commercial communication to minors up to the age of 17 clearly demonstrates the extent to which the regulations reach far beyond their purportedly legitimate purpose. It is therefore indisputable that even if the proposed regulations survive scrutiny under other aspects of commercial speech protection, they fail the fourth prong of the Central Hudson test.

CONCLUSION Years of Supreme Court doctrine have established that the First Amendment’s protection of commercial speech bars governmental restrictions of expression that either fail to advance a substantial interest directly and materially, or interfere with protected expression more than necessary to achieve that interest. Moreover, many Justices have gone further and concluded categorically that government may not constitutionally employ suppressive measures to manipulate consumers’ behavior by preventing them from receiving truthful information and advocacy promoting sale of lawful products and services. The proposed regulations designed to suppress certain advertising for so-called low nutrition foods— particularly when applied to ready-to-eat cereals, which give rise to none of the dangers sought to be avoided—unambiguously violate all of these constitutional directives; the proposed regulations therefore violate the First Amendment right of free expression, without doubt or question. The First Amendment protection of commercial speech clearly dictates that government must pursue options for dealing with the problem of childhood obesity that do not trample on rights guaranteed by the Constitution in a futile effort to find a seductive quick fix for an extremely complex problem. That the regulations are labeled “voluntary” in no way camouflages their inherently coercive nature. The force of powerful governmental agencies stands behind them, fortified by the explicit threat

105

See Order to File Special Report. These definitions include, among many other problematic definitions, the one quoted. See id. at B-6. 106 It should be noted that the government may not constitutionally justify its suppression of speech as a time-placemanner regulation, for two reasons. First, the regulation by its nature is content-based, and therefore disqualified as a time-place-manner regulation. Second, even if one were (incorrectly) to view the suppression purely as a time-placemanner regulation, where the asserted justification for that regulation is inapplicable to 80% of those participating in the expressive activity the regulation cannot be constitutionally justified. 107 But see discussion supra at Section III B.

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Childhood Obesity and the First Amendment of mandatory regulations should voluntary compliance measures prove unsuccessful. Government may not achieve through indirection what it is not constitutionally authorized to impose directly. For all of the compelling reasons described throughout this paper, the federal agencies contemplating promulgation of these regulations should avoid the inevitable judicial finding of unconstitutionality by deciding not to promulgate the proposed regulations in the first place.

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